The Tenth Amendment to the Constitution says what it means in 28 words: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

This is the entire architecture of American federalism, in one sentence. For roughly six decades after the New Deal, courts treated the amendment as a constitutional pleasantry with no operative force. That has changed, partially, over the past thirty years — but not nearly enough. And the structural damage from the Commerce Clause era has not been repaired.

Madison put it plainly in The Federalist No. 45: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”

The Founders built a government of enumerated powers because they understood what happens when authority is limited only by ambition. The Tenth Amendment made that commitment explicit: Federal authority stops where the Constitution’s actual delegations stop. The New Deal dismantled it, root and branch.

In Wickard v. Filburn (1942), the Supreme Court upheld federal regulation of wheat grown on a private farm for the farmer’s personal consumption. The reasoning was that this non-commercial act’s aggregate economic effect on interstate commerce brought it within Congress’s reach.

Once home-grown wheat for personal use was counted as interstate commerce, Congress’s enumerated powers became a historical curiosity rather than an operative constraint. The Commerce Clause effectively consumed the Tenth Amendment, and nobody in Washington complained.

The court started pushing back 30 years ago. U.S. v. Lopez (1995) imposed the first Commerce Clause limit in six decades. Chief Justice Rehnquist’s 5-4 majority held that the Gun-Free School Zones Act had exceeded congressional authority, because possession of a firearm near a school is not an economic activity with a substantial effect on interstate commerce.

U.S. v. Morrison (2000) applied the same reasoning to the civil remedy provisions of the Violence Against Women Act. NFIB v. Sebelius (2012) then rejected the commerce rationale for the Affordable Care Act’s individual mandate to purchase insurance. West Virginia v. EPA (2022) established the major questions doctrine — Congress must speak clearly before delegating sweeping regulatory authority to agencies.

Loper Bright Enterprises v. Raimondo (2024) then overruled Chevron deference, the 40-year-old doctrine requiring courts to defer to agencies’ own readings of ambiguous statutes. Courts now exercise independent judgment on what agencies are authorized to do, removing a force multiplier that had been letting agencies define their own limits.

These decisions represent real movement. But they do not undo six decades of expansion.

The most practically significant Tenth Amendment doctrine — anti-commandeering — is not in the Commerce Clause cases. In Printz v. United States (1997), Justice Scalia wrote that the federal government cannot conscript state officers to administer federal programs. The Constitution contemplates a government that acts through its own officers, not through forced impressment of state and local officials. Murphy v. NCAA (2018) extended that to legislative commandeering — Congress cannot dictate what state legislatures may or may not enact.

Sanctuary city policy is where this applies most visibly. The federal government cannot compel local law enforcement to enforce immigration law. Printz and Murphy settled that. But anti-commandeering has been badly misread. It protects states from being used as federal instruments without consent. It does not relieve state and local officials of their own duties to the people they govern.

A sheriff who declines to honor an ICE detainer is not exercising constitutional autonomy. Rather, he is making an affirmative policy choice. The relevant question is not whether Washington can force his cooperation. It is whether his constituents can hold him accountable when that choice produces a predictable outcome.

I have operated in California for over thirty years, and the pattern is consistent: There is extremely aggressive regulation where federal standards are lax, and then there is invocation of state autonomy where federal requirements are inconvenient. California does both simultaneously on immigration, environmental policy, and public pension management. The Tenth Amendment’s protection of state power is not a conservative doctrine as such. States can misuse the autonomy it protects as readily as the federal government can misuse the powers it limits.

The founders were not trying to guarantee wise state decisions when they built this into our system. Rather, they were ensuring the government closest to and most directly accountable to the people retained authority to make decisions. A federal government that overrides state policy on everything from school lunches to healthcare mandates to water regulation is not improving on state judgment. Rather, it is removing the accountability structure that makes bad state decisions correctable by voters rather than litigated in federal court.

Madison’s twenty-eight words were supposed to prevent this where political incentives work systematically against it. Congress expands because expansion generates credit for legislators; agencies expand because expansion generates authority for them. The partial reversal of the last thirty years is progress, and the court has drawn some lines. But it still hasn’t redrawn the map.

Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management.

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